Jenkins v. Bonds et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/31/2017 RECOMMENDING defendant's 40 motion for summary judgment be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT LEE JENKINS,
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No. 2:13-cv-2151-GEB-EFB P
Plaintiff,
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v.
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BONDS,
FINDINGS AND RECOMMENDATIONS
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Defendant.
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Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to
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42 U.S.C. § 1983. Defendant moves for summary judgment, arguing that the undisputed facts
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show that he did not subject plaintiff to excessive force; that plaintiff suffered no injury; and that
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defendant is entitled to qualified immunity. ECF No. 40. For the following reasons, the motion
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must be denied.
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I.
The Facts Presented by the Parties
In his verified amended complaint, plaintiff alleges that on December 5, 2011, defendant
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Bond (sued herein as “Bonds”) used excessive force against him during a transport from the
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reception area at High Desert State Prison (“HDSP”) to his housing unit. ECF No. 14 at 3-4.
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Plaintiff avers that he is mobility-impaired and requires the use of a cane due to lifelong injuries.
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Id. at 3. Nevertheless, upon his reception at HDSP, a medical staff member told Bond that
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plaintiff was faking his injuries. Id. When plaintiff told Bond of his injuries and need of a cane,
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Bond replied that he knew plaintiff was faking and ordered him to get up and be handcuffed for
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transport. Id. Bond handcuffed plaintiff very tightly, twisting his right hand downward and left
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hand upward, causing severe pain. Id. Bond then snatched plaintiff upward with his right hand
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under plaintiff’s shoulder, bending plaintiff over and dragging him the quarter mile to the housing
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unit in sub-freezing temperature. Id. at 3-4. This caused plaintiff severe pain in his wrist, arms,
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and back, which remained for three days. Id. Plaintiff told Bond that he was hurting plaintiff, but
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Bond told plaintiff he knew plaintiff was faking because the doctor had told him so. Id. at 4.
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A fellow inmate in the transport, Anthony Oliver, provided a sworn declaration which is
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appended to the amended complaint. Id. at 7. Oliver avers that he saw Bond snatch plaintiff by
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the right arm and drag him to make him walk faster. Id., ¶ 2. Plaintiff appeared to Oliver to be in
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pain and plaintiff told Bond so, but Bond responded to plaintiff that he was faking. Id. Bond told
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the other inmates in the transport that it was plaintiff’s fault they had to wait longer in the cold
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weather. Id., ¶ 3. The temperature was about 15 degrees below zero. Id. Bond also applied
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cuffs excessively tight to Oliver and threatened him with physical violence when he complained
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about it. Id., ¶ 4. The walk to the housing unit took about 30 minutes. Id., ¶ 5.
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Defendant Bond declares that plaintiff told him at the beginning of the escort that he was
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covered by the Americans with Disabilities Act, but Bond confirmed with medical staff that there
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were no limitations to plaintiff’s housing or escort. ECF No. 40-5, ¶ 5-6. Bond thus believed that
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plaintiff could participate in the escort to his housing facility, a distance of about 150 yards. Id.
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Bond was obligated to follow the medical orders in place at the prison regardless of what plaintiff
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told him. Id. Bond ordered plaintiff three times to cuff up for escort, but plaintiff refused at least
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two of those orders. Id., ¶ 6. It is Bond’s usual practice to slide a finger under the cuffs while
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tightening them to ensure they are secure but not overly tight. Id. Bond declares that he never
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snatched plaintiff but rather assisted him when he fell behind the other inmates. Id., ¶ 7. Bond
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denies that he threatened plaintiff. Id.
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S. Lopez, Chief Medical Executive at Kern Valley State Prison, reviewed plaintiff’s
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medical records following December 5, 2011 at defense counsel’s behest. ECF No. 40-6. Lopez
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“found that there were no diagnoses in plaintiff’s history to tie any injury to a December 5, 2011
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incident with Sergeant Bond.” Id., ¶ 7. No records show new injuries or that plaintiff’s pre-
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existing injuries were exacerbated. Id. Plaintiff’s medical file did not contain any healthcare
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requests from plaintiff around December 5, 2011. Id., ¶ 8.
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Plaintiff testified at his deposition that he heard physician’s assistant Miranda tell Bond
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prior to the transport that plaintiff had no injuries. ECF No. 41, Notice of Lodging Pl.’s
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Deposition (Pl.’s Dep.) at 20. He concedes that “Sergeant Bonds was under the actual belief,
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from what Mr. Miranda told him, that I was faking my injuries.” Id. at 55. Bond ordered plaintiff
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to cuff up many times and did not listen when plaintiff tried to explain his injuries. Id. at 22.
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Bond put the cuffs on so tight that plaintiff’s wrist bulged, causing him pain. Id. at 31. The cuffs
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pinched plaintiff’s skin and cut off his circulation, causing his hand to go numb. Id. Plaintiff told
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Bond the cuffs were too tight. Id. Plaintiff was at the back of the line of inmates being
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transported, with defendant lifting and dragging him, but plaintiff could not keep up. Id. at 32-33.
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Bond stopped the line, moved plaintiff to the front, and told the other inmates that they could
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blame plaintiff for the slow transport in the cold weather. Id.
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Plaintiff further testified that, as a result of Bond’s conduct, his wrists became swollen and
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painful with red bruises. Id. at 35-36. Bond’s transport made plaintiff’s back very painful, with
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nerve pain shooting down his legs. Id. Plaintiff’s existing condition did not cause that degree of
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throbbing pain. Id. at 37. Plaintiff verbally requested to see a doctor on either the evening of
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December 5th or December 6th but was denied. Id. at 41, 45. He saw a nurse about three days
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later and told her of his injuries but she purposefully wrote “no injuries” on the chart. Id. at 42-
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43, 50-51. Plaintiff did not contradict her because his injuries were healing and he assumed she
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was covering up for defendant Bond. Id. His wrist injuries healed in about a week, but his back
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injuries became worse as time progressed. Id. at 65-66. His medical records do not reflect these
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injuries because he was denied medical treatment continuously during his stay at HDSP. Id. at
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82-83.
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Plaintiff also described the incident on December 8, 2011 in a videotaped “use of force”
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interview with a Lieutenant Albonico that defendant has lodged with the court. In the video,
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plaintiff describes some of his injuries, but none are visible to the camera.
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II.
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The Motion for Summary Judgment
Defendant argues that the undisputed facts show that he did not subject plaintiff to
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excessive force, that plaintiff suffered no injury, and that he should be afforded qualified
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immunity. As discussed below, there are genuine disputes over material facts that preclude
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summary judgment in defendant’s favor.
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A. Summary Judgment Standards
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Summary judgment is appropriate when there is “no genuine dispute as to any material
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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary
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judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant
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to the determination of the issues in the case, or in which there is insufficient evidence for a jury
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to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600
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(1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v.
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U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment
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motion asks whether the evidence presents a sufficient disagreement to require submission to a
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jury.
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The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims
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or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to
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“‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
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trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.
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Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary
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judgment practice, the moving party bears the initial responsibility of presenting the basis for its
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motion and identifying those portions of the record, together with affidavits, if any, that it
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believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323;
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Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets
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its burden with a properly supported motion, the burden then shifts to the opposing party to
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present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson,
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477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995).
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A clear focus on where the burden of proof lies as to the factual issue in question is crucial
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to summary judgment procedures. Depending on which party bears that burden, the party seeking
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summary judgment does not necessarily need to submit any evidence of its own. When the
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opposing party would have the burden of proof on a dispositive issue at trial, the moving party
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need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National
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Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters
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which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-
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summary judgment motion may properly be made in reliance solely on the ‘pleadings,
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depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment
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should be entered, after adequate time for discovery and upon motion, against a party who fails to
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make a showing sufficient to establish the existence of an element essential to that party's case,
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and on which that party will bear the burden of proof at trial. See id. at 322. In such a
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circumstance, summary judgment must be granted, “so long as whatever is before the district
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court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is
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satisfied.” Id. at 323.
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To defeat summary judgment the opposing party must establish a genuine dispute as to a
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material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that
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is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at
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248 (“Only disputes over facts that might affect the outcome of the suit under the governing law
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will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is
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determined by the substantive law applicable for the claim in question. Id. If the opposing party
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is unable to produce evidence sufficient to establish a required element of its claim that party fails
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in opposing summary judgment. “[A] complete failure of proof concerning an essential element
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of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S.
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at 322.
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Second, the dispute must be genuine. In determining whether a factual dispute is genuine
the court must again focus on which party bears the burden of proof on the factual issue in
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question. Where the party opposing summary judgment would bear the burden of proof at trial on
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the factual issue in dispute, that party must produce evidence sufficient to support its factual
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claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.
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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit
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or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue
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for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to
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demonstrate a genuine factual dispute, the evidence relied on by the opposing party must be such
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that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,
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477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
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The court does not determine witness credibility. It believes the opposing party’s
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evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;
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Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the
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proponent must adduce evidence of a factual predicate from which to draw inferences. Am. Int'l
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Group, Inc. v. Am. Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., dissenting) (citing
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Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary
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judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On
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the other hand, the opposing party “must do more than simply show that there is some
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metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead
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a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
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Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary
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judgment.
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Concurrent with the motion for summary judgment, defendant advised plaintiff of the
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requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure.
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ECF No. 40-1; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d
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952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry,
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849 F.2d 409 (9th Cir. 1988).
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B. Analysis
1. Excessive Force
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Prisoners have a right to be free from excessive force at the hands of correctional staff
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under the U.S. Constitution’s Eighth Amendment. Clement v. Gomez, 298 F.3d 898, 903 (9th
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Cir. 2002). To succeed on a claim of excessive force, a prisoner must show that a correctional
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officer used force against him maliciously and sadistically to cause harm, rather than in a good-
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faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). To
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determine whether the evidence establishes such a scenario, the factfinder may consider: (1) the
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need for force; (2) the relationship between that need and the amount of force used; (3) the threat
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reasonably perceived by the officer; and (4) any efforts made to temper the severity of the
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forceful response. Id. at 7.
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While not every “malevolent touch” by an officer violates the Constitution, Hudson, 503
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U.S. at 9, the factfinder must focus not on the extent of injury but rather the extent of force used.
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Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002). De minimis uses of force do not violate the
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Constitution unless they are “repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9.
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Defendant argues that the undisputed facts show that the force he used was minimal and
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appropriate in light of plaintiff refusing to cuff up in response to two or three orders to do so. The
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court disagrees. Defendant has presented no evidence that plaintiff’s attempts to explain to
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defendant his need for specialized cuffs and a cane presented a risk of danger under the
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circumstances. On the other hand, plaintiff has presented at least some evidence that defendant
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applied the cuffs so tightly that it caused him pain and injury. See Wall v. County of Orange, 364
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F.3d 1107, 1112 (9th Cir. 2004) (holding that “overly tight handcuffing can constitute excessive
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force” under the Fourth Amendment); Candler v. Mallot, No. 2:14-cv-0363 GEB KJN, 2015 U.S.
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Dist. LEXIS 62310, at *6-20 (E.D. Cal. May 12, 2015) (applying Wall in the Eighth Amendment
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context). Plaintiff has testified to this fact several times and has submitted the declaration of a
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fellow inmate who avers that defendant also applied cuffs too tightly to him during the same
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transport. Both inmates state that they complained about the overly-tight cuffs to defendant.
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Defendant’s evidence on this point – that plaintiff’s wrist bruises were either not noted or no
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longer noticeable to the nurse three days later and that defendant’s normal practice is to apply
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cuffs so that they are not too tight – simply raises a material factual dispute regarding whether he
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applied the cuffs too tightly.
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Plaintiff has also submitted evidence (in the form of his and inmate Oliver’s testimony)
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that defendant handled him in an overly rough manner during the transport and told the other
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inmates that they could blame plaintiff for the slow transport in cold weather. If credited by the
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factfinder, this evidence may establish that defendant used more force than was necessary against
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plaintiff with intent to cause him harm rather than because he wished to safely complete the
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transport. While defendant disputes this evidence, his evidence does not definitively refute it, and
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summary judgment on the claim is therefore inappropriate.
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2. Injury
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Defendant argues that plaintiff lacks sufficient evidence that he suffered injury as a
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consequence of defendant’s conduct. The undersigned disagrees. Overly-tight handcuffs need
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not produce a visible physical injury to support a claim of excessive force; it is enough that the
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cuffs caused plaintiff “unnecessary pain,” which plaintiff avers that they did. Thompson v. Lake,
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607 Fed. Appx. 624, 625 (9th Cir. 2015); Candler, 2015 U.S. Dist. LEXIS at *19-20. In addition,
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plaintiff has testified that defendant’s conduct worsened his back and nerve pain. Defendant’s
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evidence – that defendant’s medical expert finds no injury in plaintiff’s medical records
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attributable to defendant’s conduct and the absence of visible injuries on the use of force
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videotape – simply raises a material dispute regarding the existence and extent of plaintiff’s
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injury.
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3. Qualified Immunity
Lastly, defendant argues that he should be granted qualified immunity from plaintiff’s
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claim. Qualified immunity “protects government officials from liability for civil damages insofar
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as their conduct does not violate clearly established statutory or constitutional rights of which a
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reasonable person would have known.” Mueller v. Auker, 700 F.3d 1180, 1185 (9th Cir. 2012).
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To determine whether an official is entitled to qualified immunity, the court must consider (1)
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whether, taken in the light most favorable to the plaintiff, the facts show that the officer’s conduct
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violated a constitutional right, and (2) whether the law clearly established that the officer’s
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conduct was unlawful in the circumstances of the case. Saucier v. Katz, 533 U.S. 194, 201
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(2001). The court can consider these two “prongs” of the qualified immunity analysis in the order
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of its choosing. Pearson v. Callahan, 555 U.S. 223, 244 (2009).
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Defendant first argues that the evidence shows that he did not violate plaintiff’s
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constitutional rights. As discussed above, the undersigned finds that triable issues of material fact
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exist on that question, and thus defendant may not be granted qualified immunity on that basis at
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this stage of the proceeding.
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Defendant next argues that the law did not clearly establish his conduct to be unlawful
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under the circumstances of this case because he reasonably relied on medical staff’s statement
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that plaintiff did not require accommodation and could participate in the escort. The undersigned
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agrees that this undisputed fact – that physician’s assistant Miranda told defendant that plaintiff
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was faking his injuries – made it reasonable for defendant to refuse to provide plaintiff with a
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cane or other accommodation during the transport. However, plaintiff has submitted evidence
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that defendant injured him with overly-tight handcuffs and deliberately rough handling during the
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escort. Taking the evidence in the light most favorable to plaintiff, such conduct would not have
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been a reasonable response to Miranda’s statement about plaintiff’s injuries (or lack thereof).
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Instead, plaintiff’s evidence tends to show malicious conduct unwarranted by the circumstances.
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Accordingly, qualified immunity should not be granted to defendant at this time.
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III.
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Recommendation
For the reasons above, it is hereby RECOMMENDED that defendant’s April 17, 2017
motion for summary judgment (ECF No. 40) be denied.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: August 31, 2017.
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